eLaw Journal: Murdoch University Electronic Journal of Law, Vol 16, No 2 (2009)

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Preservation of the Australian Federal System by the High Court - A Critique

Cheng Han Kea


The Australian Constitution (‘Constitution’) marks Australia’s birth as a federation. Further, it represents the type of federation that the Constitution’s framers (‘framers’) envisaged Australia to be – where the Commonwealth and the States would share legislative power. Like any other document, the Constitution requires an interpreter. Accordingly, the High Court (‘HC’) was entrusted with this responsibility. In federation’s early years, the HC preserved federalism as envisaged by the framers. However, starting from 1920, the HC has given the Commonwealth an expansive reading of its legislative powers, which robs the states of most of their powers. Therefore, it is now time for the HC to depart from this trend of jurisprudence and return to one where federalism can be truly preserved.

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